Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Seidman suggests that liberal constitutional values such as the freedom of speech and religion, equal protection, and due process “are important, whether or not they are in the Constitution” and that “we should continue to follow those requirements out of respect, not obligation.” But our political history shows quite clearly that the political process is more than willing to trample such principles, often with substantial popular support even with a constitutional obligation to respect. Yet the whole point of a constitution is to prevent such abuses and constrain popular majorities.

Seidman writes that if we followed his advice: “The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.” So supreme court opinions would be nothing more than policy briefs and appeals to moral principle? It seems to me that is a recipe for undermining the legitimacy of judicial review and ultimately relegating all such questions to the political process — and producing quite a few results I doubt Seidman would much like (e.g. greater limits on expression, lesser protection of criminal defendants, and more expansive national security authority). There are reasonable arguments for constraining (or even eliminating) judicial review — I don’t agree with them, but I think they are reasonable — but I don’t take that to be Seidman’s argument. To the contrary, he seems to want to keep judicial review, but just for those constitutional provisions he likes, but that’s hardly the basis for a principled argument for “constitutional disobedience,” as such.

Modern nontextualism is based in part on an equivocal use of the word construction, which is the noun corresponding to construe. When construing a statute, one engages in statutoryconstruction, which has long been used interchangeably with the phrase statutoryinterpretation. When one is construing a constitutional text, one is engaged in constitutionalconstruction or, again, constitutionalinterpretation. When construing a contract, one is likewise engaged in contractualconstruction – though the more usual phrase is contractual interpretation. So far, so good.

Oddly enough, though, the noun construction answers both to construe (meaning “to interpret”) and to construct (meaning “to build”). Lawyers have been known to make the embarrassing linguistic gaffe of talking about constructing a statute when they refer to deriving meaning from it. …

... [N]ontextualists have latched on to the duality of construction. … [S]cholars have elaborated a supposed distinction between interpretation and construction: “The academic discourse … increasingly distinguishes between constitutional interpretation, which is a hermeneutic exercise common to literature and law alike, and constitutional construction, which is a political and adjudicative exercise designed to fill the interstices of constitutional text.” [Citing Jamal Greene] Thus is born, out of false linguistic association, a whole new field of inquiry.

But the equivocal nature of construction has positively done harm in the work of constitutional theorists who wish to liberate judges from the texts they construe. One, for example [Jack Balkin], has recently written a 474-page book [Living Originalism] largely premised on the distinction: Constitutional interpretation, he says, is the “ascertainment of meaning,” while constitutional construction involves “build[ing] out the American state over time,” especially through all the supposed “modalities of interpretation: arguments from history, structure, ethos, consequences, and precedent.” … Even some textualists have embraced the distinction so as to contrast the legitimacy of constitutional interpretation with the relative illegitimacy of so-called constitutional construction. [citing Lawrence Solum].

But this supposed distinction between interpretation and construction has never reflected the courts’ actual usage …

(Note: I've corrected a transcription error in the fourth quoted paragraph: it's "the equivocal nature of construction" (not "constitution"); thanks to S.L. Whitesell for the catch).

12/30/2012

In the New York Times Sunday Book Review, Robert George: Interpretive Freedom. From the introduction:

In “America’s Unwritten Constitution,” Akhil Reed Amar, a commendably unorthodox and, in some ways, iconoclastic constitutional scholar at Yale Law School, bucks dominant opinions on both sides of the political spectrum. He contends that the written Constitution points to an unwritten one, and he argues that we can interpret with both intellectual honesty and analytical rigor. Aware that the idea of an unwritten constitution has been abused by judges and scholars on both the left and right, Amar insists that the idea itself is sound — indeed indispensable to the cause of constitutional fidelity — and needs rescuing from its abusers.

These posts mostly address the theory, expressed in the Legal Scholars' Letter, that the Senate can change its rules by majority vote at the beginning of a new session (because it is not a "continuing body") but not otherwise. I'm not sure why the Legal Scholars' Letter makes that distinction, however. If the matter turns on the background constitutional presumption of majority rule (as the Letter indicates), why can't a majority suspend the rules during the session?

12/28/2012

Various commentators have discussed what the constitutional world
might look like now if Judge Bork had been confirmed as a Supreme Court
Justice. Jack Balkin writes:

Despite
Bork's defeat, movement conservatives actually got their hero. Clarence
Thomas has proven to be everything that Bork might have been, and more.
I rarely agree with Thomas's views, but my study of Thomas's opinions
in the past twenty years suggests to me that he may actually be a more
successful and intellectually interesting Justice than even Bork would
have been. (And that, of course, is saying something, given Bork's
background as Yale law professor and Solicitor General).

I am a
great admirer of Justice Thomas and so I think there is much to be said
for Jack’s view. But this view also misses something. As I said in my
earlier post,
Bork was a great innovator – even more so than Justice Thomas – and
therefore we don’t know what new approaches he might have developed on
the Supreme Court. Judge Bork’s later writings were less freedom
oriented than I would have liked and so it is possible his innovations
would have been unattractive. What is more, some of his most
interesting ideas
– that promoted freedom in a way – I found to be problematic on legal
grounds. But with an innovator like Bork, you just never know.

12/27/2012

Thanks to Mike Ramsey for his thoughtful response on standing in the Windsor gay-marriage case. (For my ealier bits, see here, here, and here, and for Mike's, see here, here, and here.) I agree with Mike that BLAG does not have independent standing to intervene in litigation as a representative of Congress, but I think that where an executive stakes out an intermediate enforce-but-don't-defend position--which I think is sometimes proper, but Mike does not--courts should consider the merits arguments of amici before entering judgment. If the United States appeals or petitions for certiorari, courts should likewise consider the arguments of amici before affirming or denying certiorari.

My reference to qui tam plaintiffs' delegated authority was only for the purpose of establishing a proposition with which Mike agrees: that the federal government can delegate responsibility for making arguments to others, such as private lawyers, who themselves have no concrete and particularized interests in the case. The only issue is whether that power is limited to making arguments that the federal government agrees with. Once we agree that the federal government can delegate argument-making responsibility to others without those others' own standing, I don't see any specifically standing-based reason to require judges to look behind those arguments to see if they are consistent with other positions the federal government has taken. That inconsistency is obviously relevant to the strength of those arguments, but not to the power of a court to consider them.

Mike says that in Windsor, on my view, "the executive is allowing a third party, who has no independent Article III interest in the case, to operate independently of the executive branch, control the litigation, and advance a position with which the executive disagrees." I don't think that's exactly right. The executive has exercised control over the litigation by (a) continuing to enforce DOMA, (b) filing a notice of appeal, (c) petitioning for certiorari, and (d) urging courts to consider BLAG's arguments rather than dismissing the case as non-justiciable. The federal government could cut off BLAG's authority at any time by refusing to enforce DOMA (i.e., settling the case), just as it could have cut off its authority by failing to file a notice of appeal or failing to petition for certiorari. BLAG is therefore not controlling the litigation independently of the executive branch. (It is trying to--for instance by seeking to have the federal government's notice of appeal dismissed--but I agree with Mike that it should not be allowed to do so.)

BLAG's lack of control over the litigation also, I think, answers Mike's MWAA argument. There would be a problem, I agree, if BLAG had the executive power to control litigation on behalf of the United States based only on its status as a congressional organ. But because BLAG's ability to make its arguments in defense of DOMA is subject to control by executive officers, it is not, I think, the genuine exercise of executive power. Courts rejecting II/2/2 Appointments-Clause or II/3 Take-Care-Clause challenges to qui tam statutes have argued that the ability of the federal government to settle cases gives it effective control over litigation even if it does not actually intervene. See, e.g., Riley v. St. Luke's Hospital, 252 F.3d 749, 756 n.10 (5th Cir. 2001) (listing several courts).

Chadha, which allowed Congress to defend the legislative veto even though the INS and Chadha agreed it was unconstitutional (and did so even before the first intervention by an Article III court), viewed congressional defense of the statute as equivalent to the Court's own appointment of an amicus to defend a judgment in Cheng Fang Kwok. Chadha, of course, prefigured cases like Bowsher and MWAA in holding that neither Congress nor a subset of it could execute the law, but its discussion of standing implicitly distinguished Congress's ability to present arguments in defense of a law from the actual execution of that law.

The history of courts inquiring into the merits of a case, even when only one side appears, is at least as old as Marbury v. Madison, in which Madison did not appear. See also here at 913 (45 cases at Supreme Court during 1870s with "no opposing counsel," including Minor v. Happersett). Cases in which the Supreme Court has apointed amici to defend a judgment involve appeals in which parties agree a judicial decree should be reversed, but it is not obvious why appeals should be any different from trial-level proceedings in which parties agree that a statute should be held unconstitutional. Parity of respect for statutes and judicial decrees means that giving amici the opportunity to defend a statute should be seen as closely analogous to giving amici the opportunity to defend a judgment. They are both instances of a more general status-quo-privileging principle: even where all litigants with standing agree on a legal change, courts properly may seek advice about whether to accept that consensus. That goes for striking down a statute as unconstitutional as much as for reversing a judicial decree.

12/26/2012

Over at the Legal Theory Blog, Larry Solum has a Legal
Theory Lexicon post on The Interpretation-Construction Distinction. The post is an excellent one and Larry has
certainly done much to develop this distinction.

Larry does not mention, however, that there have been
significant criticisms made of the distinction.
In this article, which I wrote with John McGinnis, we criticize the
distinction on theoretical, historical, and policy grounds:

This article defends an interpretive approach that we call
"original methods originalism." Under this approach, the Constitution
should be interpreted using the interpretive methods that the constitutional
enactors would have deemed applicable to it. Thus, many of the key questions
that arise about constitutional interpretation - such as whether intent or text
should be its focus and whether words should be understood statically or
dynamically - are answered based on the content of the interpretive rules in
place at the time of enactment.

Original methods originalism provides the best way of determining the actual
original meaning of the Constitution. The two leading approaches to determining
the original meaning are original intent and original public meaning. We show,
however, that the correct application of both of these approaches requires that
they follow the original interpretive rules. Thus, both original intent and
original public meaning lead to original methods originalism. While the
original methods approach requires that the Constitution be interpreted in
accordance with the original interpretative rules, the rules at the time could
conceivably have required that the Constitution be interpreted as a living
document. But we provide strong evidence that these interpretive rules were
essentially originalist as that term is conventionally understood.

As well as focusing on the positive aspects of the original methods approach -
its semantic account of the Constitution's meaning - we also show that original
methods originalism is normatively attractive. Enacting a constitution through
a strict supermajoritarian process, like the one that was used in the United States,
is likely to produce a beneficial constitution. But for the constitution to
have this desirable quality, it must be given the meaning on which its enactors
voted. That meaning requires reference to the interpretive rules existing at
the time.

The original methods approach contrasts with current theories of constitutional
construction. The "constructionist originalist" believes that
original meaning controls the interpretation of provisions that are not
ambiguous or vague, but that constitutional construction provides judges and
other political actors with discretion to resolve ambiguities and vague terms
based on extraconstitutional considerations. We find no support for
constitutional construction, as opposed to constitutional interpretation, at
the time of the Framing. The enactors would have expected such matters to be
interpreted based on the original interpretive rules, but constitutional
constructionists substitute extraconstitutional resolutions for those passed
through the supermajoritarian process. Constitutional construction also
exacerbates agency costs, because it allows interpreters to employ discretion
rather than requiring them to follow the guidance furnished by the original
constitution-making process.

A modified version of this article will appear in our book
forthcoming in 2013 from Harvard University Press.

12/24/2012

I was very sad to hear of Judge Bork’s passing. I had not really
known the Judge well, meeting him only over a lunch that he bought for
me. He taught one class while I was at law school, and it was one of my
worst academic mistakes not to take it. That particular class in 1982
has been already been referred to here and here.

In
my view, Judge Bork was a pathbreaker. This was true of his Antitrust
scholarship, but I want to focus on the other area where that was true –
his Constitutional Law scholarship.

Bork is probably best seen
(with Raoul Berger) as one of the two most important developers of
modern constitutional originalism. One might criticize his most
important originalist article -- Neutral Principles and Some First Amendment Problems – published in 1971 – for not being sophisticated originalism from the perspective of modern originalist theories. .

But
pathbreakers do not produce sophisticated arguments. They are not like
the builders of cities, who can develop civilized settlements that are
impressive in their refinements. Rather, they blaze a trail. Their
contribution is to show us something we did not previously see. The
trail they blaze is often messy and unrefined. But that is not its
value. Its value is the new route it allows us to take.

Put
differently, it is extremely difficult to develop a new theory. And
that is true of originalism, even though originalism was not an entirely
new theory.

Bork’s derivation of originalism was quite different from more modern derivations. Writing in 1971, he needed a theoretical basis
for originalism – he was after all, a Yale Law School Professor – and
he found one in a modification of the Legal Process School’s notion of
neutral principles. Bork’s insight was to extend Herbert Wechsler’s requirement that principles be applied neutrally to the requirement that principles be derived
neutrally. The derivation needed to occur from the Constitution
itself, since the judge needed to explain why a principle is a proper
“limitation on the majority at all.” In the Madisonian system that the
American Constitution employed – a system that employed both majority
rule and protection of minority rights – that neutral derivation could
only occur if the principle existed in the Constitution.

Employing
one of the leading theories of the time – the Legal Process view – Bork
articulated a sophisticated notion of judicial review. Later, in the
Tempting of America, he would elaborate on these notions to developed a
more general approach to judicial review.

12/23/2012

Judge Bork’s constitutional vision was grounded principally in the need for judicial restraint—the idea that judges should not overturn the acts of democratically elected legislatures without a firm basis in constitutional text and history ... The justice who took the seat Bork did not was Anthony Kennedy, who is commonly dubbed a “moderate” because he votes, in different cases, with both the liberal and the conservative wings of the court. Studies of the court’s voting patterns indicate, however, that Kennedy votes more often than any other justice to overturn acts of legislatures both state and federal, whether for progressive gains like gay rights or limiting capital punishment, or conservative causes like blocking Obamacare or striking down campaign finance regulation. He is thus a very different kind of justice than Bork would have been.

Judicial restraint cannot hold unless it has strong and consistent advocates on both sides of the court. The successful left-wing attacks on Bork laid the groundwork for the conservative judicial activism that the left now loudly decries.

Today, you won't hear a Supreme Court Justice belittle originalism. At the far left of the Court, Justice Breyer will only go so far as to say that "text and history" are not the only tools at a judge's disposal. You'll never hear a Supreme Court nominee declare his or her support for the "Living Constitution." But you will hear nominees praise the Framers and original meaning. In her confirmation hearings, Elena Kagan went out of her way to stress that the justices should apply original meaning whenever feasible -- "we are all originalists" she said.

12/22/2012

Thanks to Chris Green for his guest posts on standing in the same-sex marriage cases (see here, here and here). He raises some very interesting issues, but ultimately I’m not persuaded, as I’ll explain below.

Professor Green’s core contention appears to be that the executive branch can allow a third party to defend a case on behalf of the United States where the third party does not represent the interests of the executive branch and where the third party would not (absent executive consent) have Article III standing. That is, in his view, as I understand it, the executive approval is crucial.

I agree that the executive can hire or appoint a representative to argue the executive’s position (for example, by hiring a private law firm). But that is not what is happening in the same-sex marriage cases; instead, the executive is allowing a third party, who has no independent Article III interest in the case, to operate independently of the executive branch, control the litigation, and advance a position with which the executive disagrees. The question is whether that is consistent with the idea of standing (that is, that parties must have a concrete and particularized interest in the case). I don't see how it is.

Professor Green cites several precedents to show that there is no standing problem here, but I think they are not on point. First, he says the constitutionality of qui tam actions supports third-party standing to advance the interests of the United States. But I think the status of qui tam actions reinforces my view, not his. First, most commentary recognizes that qui tam actions are somewhat dubious, constitutionally speaking. To the extent originalists (such as Justice Scalia) accept the constitutionality of qui tam, I think it is because (a) qui tam plaintiffs have a tangible Article III interest through the “bounty” they receive from a successful case; and (b) qui tam actions have a long historical pedigree reaching back before the founding era.

Neither of these factors is present in the same-sex marriage cases. I’m not aware of any eighteenth-century precedent for the kind of third-party standing advocated here, which is very different from qui tam. And there’s nothing analogous to the qui tam “bounty” to give the third parties a financial interest. (Professor Green suggests that the House committee might have an interest in the money at stake in the federal case, but their interest is only that the United States gets the money – the money does not go to the third party, as it would go to a qui tam plaintiff). Moreover, in qui tam actions the private plaintiff is not advocating a position contrary to that of the executive branch.

Professor Green next notes that in cases such as United States v. Dickerson the Court has appointed an amicus to argue a position the executive declined to argue. Dickerson is a little different, in that the executive branch had argued (and won) the case on the merits in the court of appeals. Thus there was a decision on the merits that did not have standing issues; the question was what power the Supreme Court had to review that decision once the executive branch changed its mind. That’s a harder question than asking whether the case can go forward in the first place without an Article III controversy.

(Note: an anonymous – but very knowledgeable – commentator adds the there are other cases in this posture, including INS v. Chadha and United States v. Lovett. That is, these are cases that the executive branch refused to defend, and the Court appointed an amicus to argue the “defaulted” position. Fair enough – although again the idea of having an independent third party involved is somewhat different. But my point is not that it is unprecedented; my point is that it is inconsistent with the basic idea of standing, at least where there was never an adverse party in the case with an Article III interest.)

Further, even if it is permissible for the executive to allow a third party to take over the litigation, in the federal case separation of powers remains a substantial barrier. Congress (or a subset of Congress) cannot exercise executive power, per the Metropolitan Washington Airports case in particular. Neither Dickerson nor qui tam is an answer to this objection.

Finally, I think Federal Rule of Civil Procedure 55, noted by Professor Green, is not decisive in this debate. The Rule (assuming it is constitutional) is designed to prevent an accidental default by the United States in a meritless case. It calls on the Court to make an independent determination of the merits, presumably to a limited extent to assure that no frivolous arguments succeed. The Rule does not contemplate designating a third party to take over the litigation when the executive thinks a law is unconstitutional.